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Workplace Investigations: Part II

Many businesses find themselves having to conduct workplace investigations for a variety reasons, from harassment to violation of conduct guidelines. Knowing how to conduct a thorough investigation is key for reducing employer liability. In this two-part series, we are exploring the best practices for conducting an investigation. Last month, in Part I, we talked about general best practices for investigations. In this installment, we will walk through the actual steps of conducting an investigation.Be prepared.
Typical steps in preparation for the investigation:

Choose an investigator

Come up with a strategy for approaching the investigation and consider all areas of liability (depending on the situation, it may be wise to involve legal counsel in this portion of the process)

Organize a list of questions (open ended as well as follow-up questions that clarify details, determine who, what, when, where, and why); the questions should allow the investigator to determine the relevant facts and assess the credibility of information provided

Select a time and location to conduct the investigation (private and away from company premises if possible)

Ensure that the company is following guidelines for investigations as necessary (e.g. EEOC, union)

Choose your investigator wisely.
Selecting the appropriate person to serve as the investigator is imperative. Qualities of a good investigator include:

Not too closely involved in the situation (objective/unbiased)

Reputation for honesty, credibility, confidentiality

Training or experience in conducting investigations

Ability to serve as a company witness if necessary

The following people are typically selected to be internal investigators:

Human Resource Managers

Supervisors/Managers/Department VPs (for smaller infractions)

Third party investigator/legal counsel (if litigation is anticipated or the situation involved a high level official within the organization—note that a third party investigator cannot defend the employer in any subsequent litigation)

If possible, it is recommended that two investigators are involved with each interview so that one person can take notes, while the other can focus on questions and follow-up inquiries. The second investigator can also serve as a witness to confirm events or statements that occurred during the interviews.

Ensure that any disciplinary action imposed is consistent with disciplinary action imposed in prior similar situations. Employers should avoid providing any sort of favoritism to their top performers/key employees if a violation is found.

Conduct the interview.
When interviewing each person, it is important to take the time to remind the interviewee that the company does not tolerate any retaliation for their participation in the investigation, and that the purpose of the investigation is to gather facts about a particular situation. Request that they be as honest, candid, and detailed as possible. They should be informed of what to expect after the investigation is complete, as well as who to contact if any other questions or concerns arise.

Typically, it will make sense to interview the complaining employee first. It is a good idea to request a written statement from the complainant, but it is not required. This will help ensure that the facts of the situation are properly documented when most fresh in their mind, and will ensure that the story doesn’t change over time. It is a good idea to ask them if they recommend speaking to any particular witnesses to the situation.

When interviewing the potential offender, it is imperative that the employer communicates that no determination has been made yet. The employee should be informed that any interference with the investigation and/or retaliation is prohibited and is subject to disciplinary action, up to and including termination. Review the allegations that are being made, and allow the alleged wrongdoer the opportunity to share their side of the story. Be sure to ask if they recommend that you speak to any particular witnesses to the situation.

For all other witnesses, ensure that open-ended questions are being asked, which invite the interviewee to provide information. Listen carefully to the responses, and follow up with questions that encourage the interviewee to provide more details. Remember to ask each person to provide any supporting documentation that they may have, including e-mails and other documents.

If possible, try to gather signed, written statements from the witnesses upon completion of the investigation. If there is any history of similar behavior or accusations in the past, this information should be included in the report.

Thoroughly document the investigation and take appropriate action.
Once all relevant personnel have been interviewed, documentation received, and all fact finding is complete, an investigation report should be prepared. The purpose of the report is to identify the policies or procedures that were allegedly violated, outline the steps that were followed in the investigation process, analyze any inconsistent or conflicting information, and determine to the best of the employer’s ability what actually occurred. It is important to keep in mind that this investigation report may be subject to discovery should the situation result in a lawsuit.

If any corrective action is necessary, it should be determined after all interviews are complete and the investigation report has been prepared. Corrective action should be administered in a timely manner. Potential action items may include training, disciplinary action, creating new policies, or revising existing policies. Ensure that any disciplinary action imposed is consistent with disciplinary action imposed in prior similar situations. Employers should avoid providing any sort of favoritism to their top performers/key employees if a violation is found.

If a violation is found and corrective action imposed, and the violation had a victim, the company should find a way to support the victim if at all possible.
Regardless of the outcome, it is a good idea to follow-up with employees to let them know that the company took the complaint seriously and conducted a thorough investigation. However, there is no need to disclose information about any corrective action taken. The HR contact and any supervisors involved should monitor the situation to ensure that no retaliation occurs, and employees should be asked to immediately report any additional claims or retaliation.

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